Durga Singh vs Amar Dayal Singh

Adami, J.—This is an application to set aside an order passed by the Deputy Commissioner of Palamau, whereby an order passed by the Deputy Magistrate binding down the opposite party u/s 107 of the Code of Criminal Procedure was declared to be void and of no effect.

It appears that the present petitioner obtained a lease of forest rights for a period of seven years from the opposite party and proceeded to work the timber of the forest. A dispute arose between the parties as to various matters but mainly as to the manufacture of charcoal and the danger of setting fire to the forest.

It is the petitioner''s case that the opposite party employed men to supervise and that these men used force. It was, therefore, prayed that steps should be taken u/s 107 against the opposite party to bind them down to keep the peace.

The case came before the Sub-divisional Magistrate in charge and he drew up proceedings and called for written statements of the parties and the Court ordered the parties to produce their witnesses. The witnesses were produced on a certain date but an adjournment was asked for and the Sub-divisional Magistrate after placing the witnesses on personal recognisance, allowed an adjournment for four days.

On the 16th of May when the case was to be heard and the witnesses to be examined, the Sub-divisional Magistrate was ill and the next senior Deputy Magistrate took charge of the pending file. He took up this case u/s 107 and tried it himself, and finally passed the order binding down the opposite party u/s 107 of the Code of Criminal Procedure to keep the peace for one year.

The opposite party thereupon moved the Deputy Commissioner who, after considering the case on its merits, found that the story put forward by the present petitioner was not altogether to be believed : he also held that at the time the order was passed by the Deputy Magistrate there was no imminent likelihood of a breach of the peace; and thirdly, he considered the question whether the Deputy Magistrate who passed the order u/s 107 had jurisdiction.

The point was that the Sub-divisional Magistrate-in-charge had taken cognizance of the case and there had been no order by the Deputy Commissioner for the transfer of the case from the file of the Sub-divisional Magistrate to the file of the Deputy Magistrate. He came to the conclusion that the Deputy Magistrate had acted without jurisdiction. His binding was that,-

"He therefore acted without jurisdiction in this case and u/s 530 where a Magistrate acts without jurisdiction the whole proceeding is void ab initio. There has been no trial and the order is void. There is in fact no order for security such as would be enforced in law, and I, therefore, quash the whole proceedings. Party aggrieved should seek his remedy in the Civil Court".

It is to be noticed that there is no order cancelling the bond. Mr. Hassan Imam on behalf of the petitioner argues that the learned Deputy Commissioner had no jurisdiction to pass the order he did. Section 125 of the Code of Criminal Procedure runs as follows:

"The Chief Presidency Magistrate or District Magistrate may, at any time for sufficient reasons to be recorded in writing, cancel any bond for keeping the peace, or for good behaviour executed under this Chapter by order of any Court in his district not superior to his Court."

There is no provision in the Criminal Procedure Code allowing an appeal against an order passed u/s 118 requiring a person to execute a bond to keep the peace, and section 125 alone enables a magistrate to deal with orders passed u/s 107 and section 118 read together. In the case of an order for the execution of a bond to be of good behaviour, the Code u/s 406 allows an appeal. It is to be noticed that Section 125 only allows cancellation of the bond; it says nothing about setting aside proceedings or in any way dealing with the proceedings which have led to the order for the execution of a bond. In fact the order passed u/s 125 is an executive order.

It has been held in the case of Daya Nath Thakur Vs. Emperor that a proceeding u/s 125 is not a judicial proceeding and in fact it cannot be otherwise than an executive order. It has been held further in Barpa Chandra Dey and Others Vs. Janmejoy Dutt and Others , that section 125of the Criminal Procedure Code does not confer upon a District Magistrate either an appellate or revisional jurisdiction in respect of orders binding down persons to keep the peace. In that case the District Magistrate set aside a proceeding which was taken u/s 107 before any bond had been executed, and the learned Judges held that "sufficient reason" mentioned in Section 125 was confined to the reason that a bond was no longer necessary.

In the case of Nabu Sardar Vs. Emperor, the decision passed in the previous case was overruled and it was decided that a bond to keep the peace might be cancelled on other grounds than that the bond was no longer necessary. In that case there was no overruling of the decision in the earlier case; that section 125 conferred no appellate or revisional jurisdiction.

In the case of Daya Nath Thakur Vs. Emperor , to which I have alluded above, it was held that Section 125 does not confer the right to hear an appeal from an order in a proceeding u/s 107.

Either of two courses was open to the learned Deputy Commissioner; if he considered that there was no likelihood of a breach of the peace, or there were other sufficient reasons for cancelling the bond, he could u/s 125 cancel the bond, or, if he considered that the Deputy Magistrate had acted without jurisdiction and the proceedings u/s 107 should be quashed on that ground, he could have referred the matter to this Court for the exercise of its revisional jurisdiction.

He has not however, cancelled the bond as he was empowered to do by Section 125, but has usurped appellate or revisional jurisdiction and set aside the whole proceedings as being without jurisdiction and void ab initio. This he plainly could not do.

Mr. Sultan Ahmad on behalf of the Crown had urged that this Court has no jurisdiction to interfere with the order of the learned Deputy Commissioner as it was not passed in a judicial proceeding. He therefore, admits that the order u/s 125 is an executive order. He has also argued that the person against whom orders are passed u/s 107 is an accused person and that the proceedings u/s 107 are criminal proceedings, so that if the Deputy Commissioner''s order is set aside by this Court it will be tantamount to the setting aside of an acquittal. But if his admission, that an order, u/s 125 is an executive order, is right, then plainly there could be no executive order setting aside an order passed in a judicial proceeding under the Code of Criminal Procedure.

The learned Counsel has contended too that the whole trend of the judgment of the learned Deputy Commissioner was to show that the bond must be cancelled. It would have been quite regular if the Deputy Commissioner at the end of his judgment, for the reasons he gave, had simply cancelled the bond, but he has not done so; he has declared the whole proceedings to be void ab initio. u/s 125 he had no power to do this.

The order of the learned Deputy Commissioner must, therefore, be set aside as being without jurisdiction and the order of the Deputy Magistrate restored. If the opposite party is aggrieved; he can approach the Deputy Commissioner again and the latter can then consider whether under the existing circumstances it is necessary to cancel the bond for any sufficient reason.